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From Products Liability Law Daily, March 4, 2014

Maker of propoxyphene-containing drugs seeks review of CAFA definition of “mass action”

By Pamela C. Maloney, J.D.

A manufacturer of propoxyphene-containing drugs has petitioned the U.S. Supreme Court to review a decision by the U.S. Court of Appeals for the Ninth Circuit that the petition for coordination of numerous claims brought by patients who were injured after ingesting these products did not request a joint trial and, therefore, the “mass action” requirement of the Class Action Fairness Act (CAFA) was not met (Xanodyne Pharmaceuticals, Inc. v. Corber, Docket No. 13-1016, February 21, 2014).

Background. In the underlying actions, patients sought to recover compensatory and punitive damages from numerous entities involved in the manufacture, sale, and/or distribution of brand-name (Darvon and Darvocet) and generic propoxyphene-containing products based on allegations that these entities knowingly or negligently manufactured, distributed, and sold defectively designed propoxyphene-containing products without adequate warnings. The patients’ counsel filed a petition to establish a coordinated proceeding involving 40 other lawsuits filed in California before a single trial judge for “all purposes” while the manufacturer sought removal of the case to federal court under the “mass action” provision of the Class Action Fairness Act (CAFA). The patients sought remand, claiming that the request for coordination would be limited to pretrial proceedings. The district court granted remand and the Ninth Circuit affirmed, finding that the petition for coordination was not a proposal to try the cases jointly and, thus, the underlying claims did not involve a mass action under CAFA.

Reasons for granting the petition. According to the drug maker, CAFA was enacted in order to prevent lawsuits having nationwide and multi-state ramifications from proceeding in state courts by permitting removal of any civil action in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the grounds that the claims involved common questions of law or fact. The manufacturer charged that by filing complaints joining dozens of plaintiffs—but keeping the number under 100—and then seeking coordination or consolidation under state-court procedures, plaintiffs’ counsel have undermined CAFA’s intent to curb abuses of the class action device. The drug maker argued that the lack of definition or direction in CAFA as to the proper application of the mass action provision has led to a split in the circuits over the difference between consolidation for trial and the coordination of complaints. The drug maker also challenged whether limiting the petition for coordination could defeat the CAFA remand provision by limiting the coordination to pretrial purposes.

Question presented. In order to provide clear guidance to the federal courts regarding the application of the “mass action” provision of CAFA and to resolve the current split among the circuits, the drug manufacturer has asked the U.S. Supreme Court to determine whether the patients’ request, pursuant to state court procedures, to coordinate numerous multi-plaintiff lawsuits involving claims of more than 100 persons against dozens of non-resident defendants for all purposes constituted a “mass action” removable under CAFA.

The case number is 13-1016.

Attorneys: Joseph P. Thomas (Ulmer & Berne, LLP) for Xanodyne Pharmaceuticals, Inc.

Companies: Xanodyne Pharmaceuticals, Inc.

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